1992 PLP 1189 (PLC(CS))

Date of hearing: 12th May, 1991. This Revision Application invoking suo Motu jurisdiction of this Tribunal under section 38 (3-A) of the IRO, succinctly stated, has arisen in the following circumstances:-

2. The respondent No. 1 here, filed an application' under section 34, IRO before the Labour Court 4 at Karachi. It was averred therein that the petitioner was a registered Trade Union for the establishment of the "Contractors and Handling Agents", registered with the Rice Export Corporation of Pakistan the respondent No. 9, and from 10-6-1982 was also signing as the Collective Bargaining Agent for the establishments of the respondents 3 to

8. The respondent No. 1 (now the informant/applicant here) was neither registered with the Registrar of Trade Unions (respondent No. 2) nor certified as CBA by him, and even in the absence of any referendum had managed to obtain CBA Certificate from the N.I.R.C. Thus armed, it had signed an Agreement dated 23-1-1991 with the respondents 3 to

8. Such an action was in flagrant violation of sections 22, 26, 28, 39 and 40 of the IRO.

3. It was further alleged that the petitioner since 1982 had been signing Agreements with the Contractors and the Handling Agents of the Rice Export Corporation of Pakistan and the last of the settlements dated 8-1-1989 was still operative. It went on to say that notwithstanding the existence of the settlements referred to above, the respondent No. 1 (that is the Applicant) claiming to be CBA had served a notice under section 22, IRO upon the respondents 3 to 8 and on 23-1-1991 succeeded in signing an Agreement with them. The said Agreement dated 23-1-1991 was wholly illegal. The prayer was couched in the following words," that the Honourable Court may be pleased to cancel and set aside the impugned Agreement dated 23-1-1991, between the respondent No. 1 and respondents Nos. 3 to 8 declaring the same as illegal, void ab initio, without any lawful authority and in (sic) violation and contradiction of sections 22, 26, 28 and 40 of the Industrial Relations Ordinance 1969".

5. The petition was accompanied by an application under Order XXXIX, Rules 1 and 2, C.P.C. in which ad interim injunction was granted. After due notice to the parties it came to be confirmed. It is this order which has been called in question, by invoking the suo Motu jurisdiction of this Tribunal.

6. Mr. Ali Amjad learned counsel for the informant/applicant, made a complaint that the list of the Handling Agents for whom the respondent No. 1 was determined CBA, had been deliberately suppressed; it had been filed by him in the present proceedings, and was conspicuous by the absence of the names of the respondents 3 to

8. By withholding this material information which cut at the root of their case, on equitable grounds the respondent No. 1 deserved to be out of Court. The compliments were returned by Mr. Suleman Habibullah. Let the matter rest there.

7. The remaining contentions of Mr. Ali Amjad learned counsel for the applicant Were two fold. Firstly that the settlement arrived at by the applicant and the respondents 3 to 8 had been arrived at through the mediation of the Federal Conciliator, and as the matter pertained to the sphere of the N.I.R.C. and as the point :n dispute as a corollary, would be whether the CBA Certificate dated 6-12-1990 issued by the N.I.R.C. was valid or void ab initio, the Labour Court would have no jurisdiction to adjudicate upon such a dispute. Secondly the settlement had been challenged, after full 16 months, and that should have weighed with the Court while considering the Injunction Application, assuming that it had jurisdiction. Reference was made to section 22-A, clause 11, section 22-A, sub-clause 8(e) section 22-E and section 27(2),IRO.

8. Mr. Suleman Habibullah learned counsel for the respondent No. 1 maintained that the N.I.R.C. had no authority to determine the applicant as CBA, when the respondent No. 1 had already been determined as such. Otherwise too, the said Certificate does not mention the names of the respondents 3 to 8 as employers. It was further urged that the prayer in the petition was simply confined to a declaration that the settlement was void ab initio and nothing more. He sought support for his contention from the decision of the Sindh High Court in C.P. No. 505 of 1991--Rice Export Corporation Lahour Union, Karachi v. Full Bench of the N.I.R.C. and others and the judgment of the Supreme Court dismissing the appeal therefrom, being Civil Appeal No. 202-K of 1991. The ratio laid down there was that there could not be 2 CBAs in an establishment at one and the same time (one a local CBA and the other an Industry wise CBA), and that the status of the local CBA did not come to an end with the registration of the Industry wise Trade Union but would hold the field for the full period of its tenure, that is 2 years unless its registration was earlier cancelled under section 10 of the IRO.

9. Mr. Ali Amjad learned counsel for the applicant distinguished the case as it had some peculiar features of its own. It appears that only a few days after the party's defeat in the referendum, the respondent in the precedent case had set up an Industry wise Union and got it not only registered with the N.I.R.C, nut was also given the Certificate as CBA. What was more it was not qualified even to be registered as a Trade Union, as it did not have 1/5th membership of the total employees as envisaged in the IRO. It was in these circumstances that the High Court had gone to say that the union had tried to circumvent its defeat in the referendum in a surreptitious way.

10. Mr. Suleman Hahibullah had also referred to Hamid Hussain v. Government of West Pakistan and others reported in 1974 SCMR

356. I wonder what relevance it had in connection with this case.

11. In reply Mr. Ali Amjad pointed out that there was no requirement of law that the names should be mentioned in the Certificate as urged by Mr. Suleman Habibullah. As for the contentions that the settlement ~ dated 23-1-1990 was invalid because of the subsistence of an earlier Agreement brought about by the respondent No. 1, his reply was two-fold; that the employers had taken no objection, and that it was not in derogation of the other. The terms of the settlement according to him were limited to the increase in the wages of the workers.

12. Mr. Ali Amjad also allayed the apprehension of any retrenchment or loss of any workers' job, at their instance as expressed by Mr. Suleman Habibullah. According to him all that had happened was that there were constant reports that some Tindals insisted or their own share in the earnings of the workers engaged through them which had caused considerable ferment. All that the applicant had done was to bring these allegations to the notice of some of the employers.

13. Mr. Muhammad Tasneem represented Rice Export Corporation respondent No.

9. He supported Mr. Ali Amjad to the extent that the Labour Court had no jurisdiction in the matter and in that context referred to section 22-B, subsection 3(b).

14. I will desist from saying anything further, lest prejudice be caused to either party as the matter is still pending before the Labour Court. All I need say is that prima facie it cannot be said at this stage when no evidence has been led, that the matter of jurisdiction is free from all doubt.

15. By consent of the parties the matter was kept for final hearing. In the light of the view taken by me in the exercise of the suo motu jurisdiction I would vacate the impugned order and allow the Revision Application. H.B.T./2059/Lb.S Revision allowed.